6.1 Diseño de los registros de datos básicos de estados. Proceso CRGEBE
6.6.1 Cabecera del mensaje de notificación: MT000
The English Marine Insurance Act 1906 merely provides the doctrine of proximity in s 55, without the indication of room for concurrent proximate causes. Should the 1906 Act apply in a strict manner, a single cause must be isolated in any event due to the singular wording used in the provision. However, it seems that the literal application and interpretation of this section is far from satisfaction for the courts. From the aspect of the provision itself, it seems that it merely aims to emphasize the term “proximately”, regarding the standard of the causal connection. It is logical to assume that if a loss was proximately caused by two insured perils, pursuant to s 55(1), the loss should be recovered by the insurer. Therefore, the provision does not deny the possibility of the existence of more than one proximate cause. Chalmers’ explanation in this respect affirms that “there may be more than one proximate (in the sense of effective or direct) cause of loss”.130
Undoubtedly, in practical scenarios, the situations are more divergent and complex. Different types of risks, whether insured or non-insured or even excluded, may combine and merge to the occurrence of the loss. Although English courts may frequently be encountered with the net of facts and intend to simplify the situation by isolating one cause of all causes,
129 Parks, The Law and Practice of Marine Insurance and Average (Cornell Maritime Press,
1987) 416
a few landmark precedents have set up and been decided upon the rules regarding concurrent causes, and no decisions nor dicta can be found in respect of s 55(1) to exclude the justification of the admittance of two concurrent causes in marine insurance cases. In retrospect, rules of causation in English marine insurance law have experienced remarkable developments, not only in terms of the test of proximate cause, but also in the recognition of concurrent causes. It is maintained that the view that a loss may have more than one proximate cause has been authoritatively accepted in English law in compliance with the decision of Hagedorn v Whitemore,131 as early as a historical case in 1816. In this
case, a vessel carrying the insured cargo was taken in tow by a British vessel of war on concealment of the British license under a mistake. The cargo on board was damaged by exposure to the tempestuous sea. Lord Ellenborough held that it was proximately caused by perils of sea; moreover, “the loss might have been alleged to have been occasioned by capture and detention”. From his learned judgment, Lord Ellenborough seems solely to show his concern on the allegation of capture and detention, otherwise than on whether there was the possibility of concurrent causes of detention and perils of seas. The trace of the recognition of concurrent causes is relatively vague and indefinite. It is more appropriate to be taken as a case of how to exclude one of the competing causes. Although this ancient judgment failed to provide strong support in acknowledging the concurrency of proximate causes under marine insurance cases, it might be a good starting point for looking into the legal acceptance of concurrent causes.
In the judgment of the latter case, Reischer v Borwick,132 where the ship was insured against
damage caused by collision with any object, perils of sea not included, and ran against a snag, Lindley L.J. advocated that the sinking was proximately caused by injuries by the collision and by the ingress of water while being towed for repair. In contrast, although Lopes L.J. admitted that “this [towing after the collision] may have been a concurrent cause, and one without which the loss would not have happened”, he held that the broken condenser resulting from the collision was the sole proximate cause of the loss finally. Whether the loss was caused by perils of sea and the collision jointly and proximately would not alter the result of the decision in compliance with “good sense”, per Lindley L.J. and under modern rules,133 since collision was an insured peril and perils of sea was non-
included. Although the concurrent causes of the sinking have not been unanimously recognised by the judges, this decision can be deemed as a significant trace of the consideration and room in respect of the notion of “concurrent causes” by courts.
It is particularly noteworthy that two strikingly contrary attitudes have been held in this case. Although it is a case prior to the enactment of the 1906 Act, the judges in this case were not
131 Supra 125
132 [1894] 2 Q.B. 548
confined to merely looking at the last cause occurring in time order. Both Lindley L.J. and Lopes L.J. considered the indispensable effect of each cause. On account that the sinking was due equally to one of these causes as the other, Lindley L.J. held a rather open attitude by admitting that the loss would be indemnified in a cover for perils of sea as well. However, Lopes L.J. emphasised that
In cases of marine insurance it is well-settled law that it is only the proximate cause that is to be regarded and all others rejected, although the loss would not have happened without them.
Literally, this proposition seems to indicate that once a proximate cause is found, it automatically excludes the circumstance of concurrent causes. That is to say, the proposition seems to allow no room for a second proximate cause in one case. However, it is illogical and implausible to disregard all other contributory causes of efficiency but for which the loss would not have happened, since all other “but for” causes cannot be self- proved to be proximate or not. The doctrine of proximity in determining the marine underwriter’s liability should be applied in a neutral manner with an equal preparedness to find the possibility of concurrent causes as with a sole cause.134 Although the test of
efficiency may have not come into the minds of the judges at the time of making the decision, the contribution in efficiency, no matter how minor it turns out eventually, should always be material to the courts, until reaching a conclusion by an overall evaluation.
The Leyland Shipping,135 which is the leading decision on the test of proximity, appears to
have shown a unanimous intention by the House of Lords in ascertaining a sole proximate cause irrespective of the complexity of the facts at that period. Confronted with the thorny question as to which was the proximate cause, perils of sea or man-of-war, Lord Dunedin suggested that the question should be resolved as a matter of fact by identifying the dominant cause of the two. Likewise, Lord Shaw of Dunfermline articulated that “where various factors or causes are concurrent, AND one has to be selected” [emphasis added], the matter should be determined by efficiency as a matter of fact. It has to be admitted that the core attention of the Lords rested on the test of efficiency in order to replace the test of time order in this case. However, according to the judgment, it seems the Lords showed less concern on whether there would be any possibility of concurrent causes. Since it abandoned the last ONE in time order test by looking into efficiency instead, it is possible that the House of Lords was not prepared to abandon the obligation (or a habitual thought perhaps) of seeking the one cause as a result of the influence of the old test. Nevertheless, the new test concerning efficiency literally embraces the possibility of equal efficiency in causation, which is distinct from the last ONE test. Thus, it would be arbitrary if one comes to the
134 Howard Bennett, the Law of Marine Insurance (2nd edn,Oxford University Press, 2006)
309
conclusion that a sole cause must be chosen as the proximate one, solely based upon this decision.
Furthermore, still in this case, Lord Atkinson criticised the tendency or an approach to divide concurrent causes into a preceding and a succeeding cause by establishing a sequence between them, the latter being proximate and the former is remote. It implies that at least a possibility remains by measuring efficiency of competing causes and owing to common sense and parities agreement in marine insurance law. Therefore, in the law of marine insurance, The Leyland Shipping cannot and should not be treated as a definite authority for answering the question as to the room of “concurrent causes”.
In contrast, the decision of a non-marine insurance case which is concerned with liability insurance has given enlightenment to the question by citing a marine insurance case. In Wayne Tank and Pump Co. Ltd. V Employers Liability Assurance Corporation Ltd.,136 the
assured entered a public liability policy with the underwriter indemnifying the accidental damage to property, excluding the damage caused by the nature or condition of any goods sold or supplied by the insured. A fire broke out and destroyed the factory. On appeal, it was held that the underwriter was not liable for the indemnity on account of the exception clause. It was interesting that Lord Denning M.R. and Roskill L.J. were attempting to assume both the condition of the goods and negligence of the servants as the concurrent proximate causes, however, neither relied on this assumption to produce their judgments. Instead, both of them insisted that the proximate cause of the fire was the defective material of the goods, which has been excluded in the cover.
Nevertheless, Cairns L.J. admitted the possibility of having two proximate causes by considering the decision of Board of Trade v Hain Steamship Co. Ltd.137 That was a special
case having gone through arbitration and court decisions. Finally, the House of Lords upheld the award and dismissed the appeal by holding that the loss was proximately caused by warlike operations solely. A collision occurred, the negligent navigation of both vessels, being equally to blame. The counter-vessel, otherwise the appellant’s which was under requisition to the Government upon a charterparty, was belonging to the United States Navy during the war time. Accordingly, the government was held to be liable for the loss in the collision in light of the warlike operations. Viscount Sumner held that every collision loss should be regarded as the result of two causes jointly and simultaneously, namely, the operations of the two vessels respectively. This proposition has been relied upon by Cairns L.J. in Wayne case for the recognition of two proximate causes to one loss. However, it seems to be not within the conventional scope of “concurrent causes” in a collision context, looking into the fault of the two vessels respectively. The so-called concurrent causes are
136 Supra 4
the quantitative base to ascertain the apportionments of liability between the two vessels, which directly determines the amount that each one’s underwriter may recover against to his vessel insured. An affirmative answer can hardly be reached as to whether the underwriters are entitled to defend themselves from the liability of the indemnity against the assureds on the same basis. The policy is concluded between the insured and the underwriter under the protection of the doctrine of privity. The rights and liabilities of each party are subject to the terms of the policy. Whether the collision falls within the scope of the insured perils of the policy determines the underwriter’s liability of recovery. It is impossible to define one collision both to be peril at sea and war risk notwithstanding two parties involved. By the same token, a collision cannot be both wilful and negligent to the assured. Accordingly, the context of collision between two vessels should not be regarded as an example of the allowance of concurrent causes in marine insurance.
Notwithstanding the defect of this collision case upon which Cairns L.J. reached the conclusion that a loss could be proximately attributed to concurrent causes in insurance cases, the decision of the Wayne case has been reaffirmed by Midland Mainline Ltd v Eagle Star Insurance Co Ltd138 which is in respect of business interruption losses under an
insurance policy (the “CGNU” policy). In particular, the judge in the Court of Appeal, Sir Martin Nourse, contemplated and held that the authorities which provided that there can be more than one proximate cause of loss have been already well established by the marine cases such as Leyland Shipping and The Miss Jay Jay. 139
The decision of The Miss Jay Jay has been recognised as the long-awaited landmark authority of the “concurrent causes” situation under the law of marine insurance. Not only the judgment holding that the damage to the yacht, The Miss Jay Jay, was proximately caused by the concurrent causes, i.e. the ill-designed and ill-constructed hull and actions of adverse sea, but also the construction of the exclusion clause as to the norm ‘solely’ have taught the marine insurance industry that ‘proximity’ in causation does not always contain the indication of being a sole cause. In respect of the finding on equal efficiency of unseaworthiness and perils of sea, the judges relied radically upon the reasoning in Dudgeon v Pembroke, 140 in which it was held that the loss was recoverable due to the
immediate cause of perils of sea, though it might not have happened but for the concurrent action of some other cause which was not within the policy. The reason for excluding the relevancy of the seaworthiness status of the vessel resides in the test of immediate cause in time sequence in the 1870s, when Dudgeon v Pembroke was decided. The nearest cause test provides the evident grounds to the courts to overlook the possibility of concurrent causes. Until The Miss Jay Jay, the judges moved further so as to find the equal efficiency of both
138 [2004] 2 C.L.C. 480 139 Supra 48
causes, but for which the cause would not have occurred to be the proximate causes to the loss. Although this decision has been repeatedly followed by cases lately, 141 per Lord Mance
in The Cendor Mopu,
…the Court of Appeal was not presumably suggesting that, where initial unseaworthiness or unfitness and unfavourable weather conditions beyond the ordinary action of wind and waves have both played a role, the court must always treat both as equal or nearly equal proximate causes.
In light of the absence of a clear approach on how to weigh and conclude the equal efficiency of two separate causes in The Miss Jay Jay, Lord Mance adopted the formulation of Lord Diplock in Soya v White142 regarding the concept of inherent vice instead for his final
judgment. It has been suggested that such treatment indicates that it could be proximate cause only if the loss was attributed to such debility or similar occasions listed in s 55(2)(C)
143 of the 1906 Act, without any fortuitous external accident or casualty in compliance to the
approach by Lord Diplock.
Interestingly, although it seems The Cendor Mopu did not reverse back as far as the traditional standpoint of Dudgeon v Pembroke with reference to immediateness, it rejects the concurrency of causes under the circumstance of The Miss Jay Jay. It should be remarked that the formulation upheld in The Cendor Mopu rejects the concurrency of inherent vice and perils of sea to one loss, as if two sides of a coin. Lord Diplock’s formulation with reference to inherent vice complies with the long-established test of efficiency. An insurance policy does not purport to insure what the vessel or the cargo is in itself, but to insure what they are likely to encounter at sea. The risk attributed to the inherent characteristics of any cargo essentially undergoes from the first minute from the commencement of the policy to the end. The losses in various levels take place only under certain fortuitous surrounding conditions known as causa sine qua non. Although it has been beyond discussion that the causation in the legal sense focuses on the causa proxima,144 provided that the external requisite condition occurs in form of an insured peril,
it turns to be the proximate cause in efficiency in the legal context as an intervening cause against the gradual effect of the inherent characteristics. In The Cendor Mopu, the efficient trigger was the leg-breaking wave which is a peril of sea, though the factor of inherent vice increased the adverse condition of the cargo continuously. It is within common sense that
141 Marina Offshore Pte Ltd v China Insurance Co (Singapore) Pte Ltd [2006] SGCA 28; [2007]
1 Lloyd's Rep. 66; [2007] Lloyd's Rep. I.R. 383; CA (Sing), Martini Investments v McGuin [2001] Lloyd’s Rep. I.R. 374
142 [1983] 1 Lloyd’s Rep 122
143 “Unless the policy otherwise provides, the insurer is not liable for ordinary wear and tear,
ordinary leakage and breakage, inherent vice or nature of the subject-matter insured, or for any loss proximately caused by rats or vermin, or for any injury to machinery not proximately caused by maritime perils.”
the trigger takes the most efficient part in the loss. Accordingly, per Lord Clarke, this policy was held to cover the rigs against the leg breaking, but not against every metal crack as a result of inherent vice. The two causes operate independently to divergent losses; to each loss, there is solely one proximate cause. Therefore, it seems from now on unlikely to find a case in which a loss is proximately caused by the equal co-operation of inherent vice and perils of the sea.
Another question has been raised as to whether the decision would be different by holding the sole proximate cause of the loss of the yacht to be perils of sea, had the formulation of Lord Diplock applied to The Miss Jay Jay. In other words, it becomes doubtful whether The Miss Jay Jay would still be good law as to concurrent causes in the law of marine insurance. The Cendor Mopu may be deemed as authority to reject concurrency between internal risks and external ones; in the meantime, it warns about the rarity of real concurrency of causation. However, the improbable concurrency of inherent vice and perils of sea is not the whole story of the concurrent causes in the marine insurance context. Lord Diplock’s approach may apply to every occasion in s 55(2)(C). However, it may be incorrect to extend this formulation to a case of seaworthiness. The risk of loss due to unseaworthiness cannot expose and take place without the action of seas. That is to say, unseaworthiness cannot lead to the loss “without any intervention of any fortuitous external accident or casualty”, since unseaworthiness is unfitness “to meet and undergo the perils of the sea and other incidental risks to which she must of necessity be exposed in the course of the voyage”.145 A
loss of an unseaworthy ship ought to be attributed to both factors. On the contrary, the permanently intrinsic nature of the cargo can independently cause loss, regardless of